In holding the statute unconstitutionally vague, however, the Alaska court added, “we do not decide … whether all conceivable criminal libel statutes are necessarily vague.” Given “a narrowly drawn statutory definition, especially one designed to reach words tending to cause a breach of the peace, then such a statute might well be proper,” it ruled.
The ACLU believes the New Hampshire criminal-defamation statute to be impermissibly vague in much the way that the Alaska court articulated.
It argues that criminal statutes implicating the First Amendment require a greater degree of specificity than usual, as statutes of that sort invariably inhibit the exercise of protected speech when they abut it. And it goes further than Alaska, contending that the line between protected speech and defamation is often so blurry as to be permissible in civil law but inappropriate for criminal law as a general matter, given how prone it is to arbitrary, uneven, and selective enforcement.
I ran the vagueness argument by Volokh, asking if it changed his view of the New Hampshire law and whether it was likely to survive a court challenge. “I agree that the Gottschalk decision is helpful to the ACLU; perhaps it will ultimately carry the day,” he emailed back—but that isn’t the outcome on which he’s betting.
He cited several cases to ground his contrary analysis, including Garrison v. Louisiana, a 1964 case in which New Orleans District Attorney Jim Garrison was convicted of criminal libel for stating that the court system was backed up because a number of state judges were lazy and inefficient.
The Supreme Court declared Louisiana’s criminal-libel law unconstitutional, in part because it restricted the use of truth as a defense and did not require proof that forbidden statements were uttered with malice. But Justice William Brennan wrote that “although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity.”
That’s one of several passages that color skepticism of the ACLU’s case. Says Volokh:
I think that the likelier scenario is that the New Hampshire law would be viewed as sufficiently narrow and sufficiently clear to be constitutional, given Herbert v. Lando and Garrison v. Louisiana. This is especially so because the “tends to expose to public hatred, contempt, or ridicule” test has a long history to it, and because there has to be a showing that the speaker actually knew that the statement had that tendency.
“[T]he knowledge requirement of the statute further reduces any potential for vagueness, as we have held with respect to other statutes containing a similar requirement.” Holder v. Humanitarian Law Project (2010).
Whether or not the ACLU prevails, this case ought to prompt legislators in the 25 states with criminal-defamation statutes to reflect on the wisdom of maintaining them, even if they do pass constitutional muster. “Of course, freedom of speech does not give anyone the absolute right to spread malicious lies about their fellow citizens,” the ACLU argued in a blog post released as it filed the case. “That’s why our laws allow people who have been slandered to file civil lawsuits for money damages.”